A. INTRODUCTION: In the course of these lectures we shall be examining, in some detail,
a work that is widely regarded as the leading contribution to jurisprudence produced in
Britain in the 20th century. The editors' note to the second edition commences with the
observation that 1"Within a few years of its publication The Concept of Law transformed the
way jurisprudence was understood in the English-speaking world and beyond" and comments
on the work's "enormous impact". Stephen Guests's comment is typical 2 "Hart's theory of
legal positivism has a long and distinguished history. It is not merely that it has withstood
serious and sustained attacks from different quarters but it appears to have been accepted by
large numbers of lawyers, judges included, in the United Kingdom, and in various
jurisdictions of the new and old commonwealth" (Stephen Guest, Positivism Today, p 29)

Such opinions of themselves may justify treating the work as an appropriate starting point in
jurisprudence but the study of such a work is not simply an end in itself. Rather, it is an
exercise in Legal Theory. As such an appreciation of the book should redound upon one's
understanding of the law, One test of a legal theory is that it should advance one's
understanding of the law. If it does not, so much the worse for the theory. So what is legal
theory ? Here is one answer: 3. "Legal theory involves a study of the characteristic features
essential to law and common to legal systems. Its object is the analysis of the basic elements
of law which make it law and distinguish it from other forms of rules and standards, from
systems or order which cannot be described as legal systems, and from other social
phenomena". (J.D. Finch, Introduction to Legal Theory, 2nd ed. , London, 1974, p.2). Thus
we encounter The Jurist's Question - "What is Law?" And we shall follow Hart's answer
to this question and his analysis of the salient features of law, and of the essential constituent
elements of a legal system.

Legal theory is characteristically described as being concerned with understanding law; or
understanding what law is; or understanding the law; or knowing what the law is. And this
offers one test of a good theory: A good theory of law is one which helps us understand the
law. But such a criterion requires further refinement. What do we mean by
"understanding" in general and by "understanding law" in particular? Let me rehearse some
of the possibilities.

First, "to understand" is frequently used to indicate a knowledge of causal relationships. To
understand law on this account would be to know or grasp its causes, how it came to be, what
was its genesis, what conditions must obtain in order for there to be law; and what specific
conditions generate which specific laws. On this view, a social or legal theory would be a
body of empirical generalisations - often misleadingly called "laws" - as in the phrase "laws
of nature" - purporting to state causal relationships. Such a theory might pursue the so-called
"laws of social causation"[Spencer, Compte, Hegal Marx, Unger, Fukyama]. It would
purport to explain the existence of past laws as effects of certain conditions; and human
behaviour might be explained as the effects of such laws; it would seek, too, perhaps chiefly,
to predict future laws on the basis of conditions thought likely or certain to obtain in the
future; it would seek to predict human responses to such laws. Such an approach
approximates to one conception of the sociology of law.

Well, that is not what I think is meant by "understanding law" in the context of legal theory.
I even doubt, for what seem to me good and sufficient theoretical reasons, that such a causal,
predictive theory of law is even possible. But even if such a theory is possible, no actual
theory of society or law has attempted the detailed predictions which alone would make them
testable. It is one thing to suggest (with Marx or Posner) that there is a connection between
economics and law, but quite another to suggest that a free market economy is necessarily
linked with laws regulating inheritance; and yet another, perhaps utterly absurd, to move from
the market economy to the detailed rules of successions concerning, say holograph wills in
Scotland, or the precise number of witness required to validate a will in England. Yet as
lawyers we are interested not merely and perhaps not chiefly in gneral correlations of social
phenomena, such as level of unemployment and the incidence of crime, but also, and perhaps
exclusively in the detailed content of the law of this or that community. But a causal
methodology seems unable to lead us to knowledge of that content. Thus understanding in
the causal sense is not, I think, what is meant by "understanding law", in the sense that phrase
is used by legal theorists.

Secondly (a), Another meaning of "understanding" involves relating the hitherto unknown to
the known. By explaining one set of data in terms of another with which one is familiar, the
data is explained and thereby understood. At its crudest, such explanation is merely analogy
as where electricity is explained on the model of pipes through which pass a "current" of
water. At is most developed such an activity is called "reductionism" - i.e. the reducing of
one set of data to the concepts of a separate disciple, e.g. the reduction of chemistry to
physics. One thorough-going reductionist programme would be an attempt to reduce all
knowledge to the model of physics - "the queen of sciences". Examples relevant to the study
of law include "psychologism", whereby law is reduced to a set of psychological concepts
like "will", "fear", "motive", "desire", etc. and the Marxian scheme wherein "law" is
explained as the ideological reflection of a real, economic base - law thereby being reduced to
economics. One can readily understand why "reductionism" is frequently used in a sneering
or pejorative sense, because it is seen as an attempt to eliminate a specific sphere of meaning,
discourse and intellectual endeavour. "Reductionism" may well be seen as an attempt to
abolish a specific discipline by reducing it - without remainder - to another, thereby not so
much explain "law" as explaining it away.

The idea is that law, for example, has no distinctive concepts of its own; that it is not sui
generis, distinctive, nor unique; that all which can be said in legal terminology can be more
simply and better said in the concepts and language of the other, privileges, disciple . Often
it is further supposed that the science to which the law is reduced has some predictive or
causally explanatory power; the object of the reduction being to end up with "understanding"
in the original, causal sense. Such an approach, of course, eliminates, the specific meaning
of law altogether and it is therefore unlikely to further our understanding of law.

Secondly (b), Another, quite distinctive form of "reductionism" is much more relevant to
the study of law and to legal theory. This is conceptual reductionism. What is involved
here is the reduction on one concept into another, the latter being conceived of as somehow
"basic" or "fundamental". Thus if, as Austin thought, the concept of "command" is "the key
to the science of jurisprudence" then all legally relevant material should be reducible without
remainder to the form of a command. As we shall see it cannot be so reduced and that is a
fatal criticism of the command theory of law. Equally, if "the union of diffeent types of
rules" is, as Hart argues, the fundamental concept, then all law and legal phenomena should
be reducible without remainder to rules. This second type of reductionism is a central
element in legal theory. If, as is usually assumed, property is a legal phenomenon, and if, as
one persistent jurisprudential tradition holds, law is rules, then property has to be explicable
as a legal concept exclusively in rules. There is an established tradition in legal theory, often
referred to as "Analytical Jurisprudence" which is profoundly concerned with understanding
legal concepts in this sense, that is, with the reduction of legal phenomena to their
fundamental conceptual basis; and with the explanation of legally relevant material on the
basis of one or a cluster of fundamental legal concepts (or "Conceptions", as Hohfeld put it)

Thirdly, to "understand" may mean to describe social phenomena in terms of the meaning
they have for the social actors. If we are concerned to know and understand the law, to know
the law as it is and to comprehend the content of a legal system as thoroughly as we can, then
we may have to grasp the "inner meaning" of the law. It might appear that such an
understanding, from the inner point of view of the social actors themselves, must necessarily
be particular because it describes the actors' understanding of the law of a particular
community at a particular time and place. If so, the theoretical or scientific status of such an
enterprise would be open to question, the point about a theory of law being that it seeks to be
general.

But there may be a way in which one can develop a general jurisprudence, even though each
legal system has its own particular content: 4."In any comparative study of legal theory, a
distinction must be maintained between the character of law and the content of law, or rather,
of laws". (Finch, op.cit., p.3). Some of you may already be aware that according to Kantian
epistemology, knowledge itself is a synthesis of form and content. Now the form, the
conceptual framework, can be isolated and looked at in order to determine whether or not it is
even prima facie likely to do its job; i.e. provide a convenient set of conceptual pigeon-holes
for the legal content of any system. Indeed some legal theorists do suggest that different
legal systems have a common structure, though a different content. This is true enough if
they mean conceptual structure. It is manifestly false if one understand social, economic,
political or even constitutional structure. It is also somewhat misleading to talk of a legal
system "having" a conceptual structure. Rather a conceptual structure is a tool which the
jurist brings to bear upon the content of a particular legal system, by which the jurist can
classify and resent it; by which it can be known and understood.

Legal Theory is thus concerned with the conceptual structure whereby the material of a legal
system can be presented and understood. General Legal Theory seeks a trans-systemic
conceptualisation; i.e. it seeks a set of concepts "general" enough and sufficiently
comprehensive to embrace all possible legal systems, just as Botany or Biology and other
taxonomic sciences contain within them forms for the classification of all possible flora or
fauna and not merely the accidental plant and animal population of a particular time, place
and climate. Particular Legal Theory rests satisfied with intra-systemic concepts; i.e.
indigenous concepts, known to and used by the local legal profession, scholars, and citizens
to manipulate the legal material and manage the legal system. Particular Legal Theory might
therefore be able immediately to adopt the local concepts and the inner meaning attributed to
the data by the social actors. However, General Legal Theory may well use concepts not
featuring in the thoughts and discourse of the local legal professionals and scholars. Indeed
it is highly likely that a set of concepts abstract enough to present and describe the content of
all, or all "mature" legal systems, would not be in day and daily use by all the local legal
professionals, scholars, and citizens in each and every legal system. That being so, in order
for General Jurisprudence to be systems-applicable a set of transformation rules must be
super-added in order to translate local legal dialect into the general conceptual scheme of
legal theory. It may be that there are very few concepts general and abstract enough to meet
the demand of General Legal Theory but two opposing candidates present themselves;

IRules or II Rights. For Hart, as we shall see, the concept of a rule is central to
understanding law and to a coherent notion of General Legal Theory. We will therefore need
to consider just what a rule is and what forms it may assume.

B. PHILOSOPHICAL BASIS: All theories of law are influenced by some general
philosophical assumptions and Hart's Concept is no exception. The dominant school of
philosophy in the mid-twentieth century, particularly at Oxford, was Linguistic Philosophy
and Hart's Concept exhibits its influence through and through. Let us look, briefly, at the
contribution of three leading linguistic philosophers (see R S Summers, reviewing Hart's
Concept 1963 Duke Law Review 629, 631, fn 7):

1. G E Moore 1873-1959

2. Ludwig Wittgenstein 1889-1951

3. John L Austin 1911-1960 (Not to be confused with John Austin, the celebrated jurist).

In his Principia Ethica (1903) Moore advanced the general view that all difficulties and
disagreements in all philosophical debates are due to one simple cause; namely, the attempt to
answer questions without first discovering what the questions are. Thus so-called
philosophical problems are pseudo-problems, stemming from the misuse of language. If
philosophers would only get their questions clear, their problems would vanish ! Thus is
philosophy reduced to mere linguistic therapy ! Of course it is important to get one's
problems clear. But a clear and clearly stated problem is still a problem. An analysis of
language which analyses problems away altogether is not a solution but an evasion. Clarity
is a necessary but not a sufficient condition of philosophising.

But not only does the importance of language figure in Moore's philosophy, so too does the
validity of the plain man's view. The status of comme sense is high. This follows from the
view that philosophical problems are created by philosophers. It is their misuse of language
which creates problems. Plain men are not philosophers. They don't confuse themselves.
They don't have problems. Thus will common usage - the language of the plain man based
upon common sense provide all the answers.

Wittgenstein's philosophy is complicated by the fact that he espoused two inconsistent
theories as to the nature of language and its relation to philosophising at different stages of his
life. For the later Wittgenstein, language is multiplex, complicated and related to many
different types of situation which he calls "forms of life". In his earlier philosophy,
Wittgenstein had attempted to construct a rigidly precise, artificial language, to overcome all
problems of vagueness and uncertainty. His failure in this, which he did not become aware
of for many years - indeed he gave up philosophy, convinced that he had solved all
philosophical problems --- well his failure in this led him to attend to actual language in all
its diversity; philosophy now involved the clarification of the confusion and perplexity spread
by philosophers using language in the wrong context; i.e. like playing a game according to the
rules of another game. Philosophers of the traditional type produce nonsense; which is
incompatible with familiar and deep-seated common-sense beliefs. Real philosophers, i.e.
Wittgenstein and the post-Wittgensteinians seek to eliminate such confusion, to overcome our
bewitchment by language. As he put it, the task of philosophy is "to show the fly how to get
out of the bottle". The point being, of course, that it was the philosophers who put it there in
the first place.

Professor John L Austin, with whom Hart collaborated at Oxford, took linguistic philosophy
seriously as an end in itself rather than as a therapeutic or prophylactic activity: 5."Much of
course of the amusement and of the instruction comes in drawing the coverts of the microglot,
in hounding down the minutiae...". (John L. Austin, "A Plea for Excuses", Proceedings of
the Aristotelian Society, Vol. 57 (1956-57) pp.1-30, reprinted in The Philosophy of Action,
ed. Alan R. White, Oxford, 1968, p.19).

Austin became deeply involved in the detail of usage and was reluctant to theorise or
generalise; because (he thought) that to generalise was necessarily to distort. As will become
evident from my assessment of Hart's Concept, I have little sympathy with linguistic
philosophy. I cannot share Austin's startling view that : 6."... ordinary language ... embodies
... the inherited experience of many generations of men". (John L. Austin, op.cit., p.27).
Austin's belief in the adequacy of ordinary language is truly astounding: 7. "... our common
stock of words embody all the distinctions men have found worth drawing ... they surely are
likely to be ... more sound than you or I are likely to think up in our armchairs of an afternoon
- the most favoured alternative method". (John L. Austin, op.cit., pp. 24-25). Notice the
disdain or even contempt exhibited by Austin towards the History of Ideas ; i.e what you or I
have thought up of an afternoon ! Again, I do not share the extreme views of a lesser figure
of the School, G L Warnock: 8."... language does not develop in a random or inexplicable
fashion ... it is at the very least unlikely that it should contain either much more or much less
than [its] purposes require ... it is at the same time very unlikely that any invented
terminology will be an improvement". (G.J. Warnock, English Philosophy Since 1900,
London, 1958, p.150).

All this seems to me seriously wrong-headed and no more persuasive than the extravagant
notion that the common law is reason itself. Of course an artificial, technical language can
do certain jobs better than ordinary usage. And of course there is more to philosophy than a
mere scrutiny of usage: 9. "The very purpose of philosophy is to delve below the apparent
clarity of common speech". (A.N. Whitehead, Adventures in Ideas, Cambridge, 1933, p.214).

Indeed, it seems to me that ordinary usage and common sense is trivial, platitudinous, and full
of error. It perpetuates error, mysticism, and myth. It eliminates the need to be aware of the
contribution of "technical" languages such as those of science, mathematics, law, etc. It
seems to me to be non-critical and complacent; it accepts as justified what common sense
accepts. Betrand Russell seems to me to have gotten it about right when he said:. 10."...
common sense is the metaphysics of the savage". Common sense and ordinary usage
philosophy t is uncritical, conservative and trivial .... 11. "Philosophy only states what
everyone admits". (J.O. Urmson, cited E. Gellner, Words and Things, Pelican, 1968, p.111).
12. "Philosophy begins and ends in platitude". (J.O. Urmson, cited E. Gellner, Words and
Things, Pelican, 1968, p.111).

A view more congenial to my own cast of mind is well put by Lon Fuller: 13. "In general, the
practice of ordinary language philosophy consists in digging out and clarifying the
distinctions embedded in everyday usage. In whatever field these distinctions are found,
there seems to be a kind of presumption that they will prove valid and useful and that once
they have been fully articulated there is no need to go further. Some useful insights have
been derived through this method; there is indeed a lot of tacit and subtle wisdom concealed
in the interstices of everyday speech. But the tendency of the practitioners of this method has
been to regard as an end in itself, what ought to be viewed as a useful adjunct to philosophical
thought". (Lon L. Fuller, The Morality of Law, revised ed., London, 1970, pp. 195-196).

Finally, linguistic philosophy is not above a degree of intellectual dishonesty. It introduces a
littlr pre-therapeutic puzzlement or perplexity - the dark sayings, the bewildering alternation
of drawing attention to the obvious, of insisting that all is plain before us, with, on the other
hand, hints at the most terrible difficulty, at inner torment, at ineffability are used to cower the
reader into submission. Hart's first chapter is a masterpiece of this genre. Puzzlement,
deep perplexity and mystery abounds ! 14. "... in the case of law, things which at first sight
look ... strange ... have often been said ... many assertions and denials concerning the nature
of law which at first sight ... seem strange and paradoxical. Some of them seem to conflict
with the most firmly rooted beliefs and to be easily refutable ... these seemingly paradoxical
utterances were not made by visionaries or philosophers concerned to doubt the plainest
deliverances of common sense". (H.L.A. Hart, The Concept of Law, Oxford, 1961, pp.1-2).

Against this negative view of philosophy, I oppose a wider and older view of it as the critical
assessment of belief, together with such conceptual analysis and revision as is necessary to
that end, even where the reconstruction of concepts goes well beyond common usage. Nor
do I believe that to generalise is necessarily to distort, or that theory is to be distrusted.
Rather I believe that thinking is a unifying process, and to make sense of or to understand
something is sometimes to see it as part of something more general. ["Itch for uniformity"]

C GENERAL SUMMARY OF HART'S CONCEPT: Extemporise on Handout

D. CHAPTER I: THE EDUCATED MAN AND THE SALIENT FEATURES OF A
LEGAL SYSTEM: 15. "Academic environments are generally characterised by the presence
of people who claim to understand more than they do. Linguistic Philosophy has produced a
great revolution, generating people who claim not to understand when in fact they do. Some
achieve great virtuosity at it. Any beginner in philosophy can manage not to understand, say
Hegel, but I have heard people who were so advanced that they knew how not to understand
writers of such limpid clarity as Bertrand Russell or A J Ayer". (Ernest Gellner, Words and
Things, Pelican, 1968, p.68). In the first chapter of Hart's Concept we find "puzzlement".
Hart, as an exponent of linguistic philosophy gets to work right away on puzzling us. Those
who came before him in the history of jurisprudence said puzzling things. This is
demonstrated by selected remarks from Llwellyn, Holmes Gray, Austin and Kelsen which are
"strange and paradoxical" [ p 2]. This is pre-therapeutic activity, spreading confusion in
order that all can be clarified and corrected at a later stage as a consequence of Hart's own,
alternative "analyses". The remarks of these jurists are easily refuted - "conflicting as they
do with the most firmly rooted beliefs" [p 2] Whose beliefs? One might ask. Those of
Hart's friend - "the educated man" [p 2]. Yet Hart does try to be fair. The remarks of earlier
jurists are "...both illuminating and puzzling" [p 2]. The puzzles and strange paradoxes of
the jurists are compared with the ability of "most men" to "cite with ease and confidence"
examples of law. But, of course, Hart is not comparing like with like. The jurist attempts to
answer the question, "What is law?" whereas the ordinary man gives examples of laws.
Furthermore Hart does make himself sound a bit ridiculous by asserting that virtually anyone
could multiply examples "coming across the word for the first time" [p 2].

However, according to hart, any educated man can identify "salient features" [p 2] of a legal
system. These are:-

(1) Rules forbidding or enjoining certain behaviour under penalty.

(2) Rules requiring people to compensate those they injure

(3) Rules specifying what must be done to make wills. Contracts, or other arrangements
which confer rights and create duties.

(4) Courts to decide what the rules are and when they have been broken, and to fix the
punishment or the compensation to be paid.

(5) A legislature to make new rules and abolish old ones.

This is a very important passage. The educated man says that law is made up of rules:
there rules are of different types ... or so it seems to the educated man. Hart's programme in
his Concept, which actually commences in Chapter V, is to shoe that law can best be
elucidated by thinking of it as a union of primary and secondary rules; i.e. items 1 and 3 on
the educated man's list. The only justification offered at this stage for distinguishing these
items is that the educated man does, or at least, Hart says that the educated man does. But
we can ask: (1) Does the educated man think this? And (2) Even if he does, could that not be
wrong or simplistic? Nor would it be any great surprise to discover that the educated man
thinks law to be a matter of rules. For over a century education in Britain (or in England)
both legal and general had followed Austin in the unexceptional view that 16. "A law, in the
most general and comprehensive acceptation in which the term in its literal meaning is
employed may be said to be a rule laid down for the guidance of an intelligent being by and
intelligent being have power over him". (John Austin, The Province of Jurisprudence
Determined, London, 1968, p.10).

Hart dismisses standard jurisprudential questions of the time such as "Is constitutional law
really law?" or "Is international law really law?" - questions, as we will see which arise
primarily in the context of Austinian legal theory - and addresses himself to the nature of the
central case of law, that is municipal law and national legal systems. Hart is, in his own
terns, concerned with standard cases not borderline cases. If the educated man can give a
ready answer " with ease and confidence", presumably there is no problem in defining or
identifying law ... or, is there? Well there certainly is ! Hart now suggests that we were
"perhaps optimistic" in putting such words into the mouth of the educated man, i.e. the "ease
and confidence" proves to be pretty superficial ! Of course, says Hart, those who have been
perplexed have not forgotten this agreeably short way with the question: "What is law?" The
deep perplexity springs from more than the conventional assertion that " laws of various
types go together" [p 5] Hart goes on at this point to give a general account of what has
puzzled jurists in the past, but two points cannot be overemphasised since they are basis to the
whole approach of the Concept and have already been taken for granted, that it:

(1) law is somehow connected with rules; and

(2) There are laws of various types.

I will have more to say about these about these points subsequently but here I stress that Hart
never deviates from the view that there are laws of different types. But what is his
justification? It seems to be, at this stage anyway, merely because the educated man believes
it to be the case that there are laws of different types. Of course, at a superficial level there is
nothing wrong or strange or puzzling about such a view but from the point of view of logical
analysis it prejudges the issue whether or not there is a common logical form underneath the
superficial verbal differences. We can see that hart is here already sowing the seeds of the
view which emerges in Chapter III and is developed there, namely "The variety of Laws" and
which culminates in his "Fresh Start" in Chapter V as a doctrine about the union of different
types of legal rules. But the types are assuredly not logical; they merely represent the
common way s of speaking. This, then is Hart the linguistic philosopher and not Hart the
analytical jurist.

Hart summarises the dep perplexity of earlier jurists under three questions which may be
taken as the articulation of what is tacitly contained within the question: "What is law?" :-

(1) The question of obligation. It is a central feature of legal systems that conduct is made
somehow non-optional. Hart tells us that 17. "The most prominent general feature of law at
all times and places is that its existence means that certain kinds of human conduct are no
longer optional, but in some sense obligatory". (Hart, op.cit., p.6) and again, 18. "All
speculation about the nature of law begins from the assumption that its existence at least
makes certain conduct obligatory". (Hart, op.cit, p.212). So the question becomes; "How do
law and legal obligation differ and how are they related to orders backed by threats?" This
way of putting the question reveals that for all Hart's criticisms and ultimate rejection of
Austinian legal theory, the assumptions of and agenda of that theory are profoundly influential
in shaping Hart's questions and solutions. Hart, I think was never able fully to free himself
of Austinian traces although whether that is a weakness or a strength of his own theory is a
matter for debate. [Hart = Austin + Kelsen ÷ 2] Thus we see Hart's ambivalence towards
Austin whose reduction of law to psychological fact though "attractive" both "distorts and
confuses" [ p 7].

(2) In what manner is behaviour made obligatory? This raises questions about moral
obligation and legal obligation and the relationship of law and morals. These are, of course,
central and contested questions in jurisprudence.

(3) The idea of rules. Here [p 8] Hart starts puzzling us again. Though the idea that law is
somehow explicable in terms of rules seems indubitable, in fact, the notion of a rule is
"unsatisfactory, confusing and uncertain"; it conduces to "perplexity". In the midst of a
barrage of questions about rules, designed it would seem to baffle us still further, Hart
introduces [p 8] the view that there are different types of rules and what might be meant by
"types" is partially explained, as follows: